25 May 2018

Nalcor contractor secrets still safe under revised law #nlpoli

Anyone who cracked out the champagne over the bill that would purportedly shed light on Nalcor's embedded contractors might want to spit some back in the bottle for another day.

Bill 19 went through second reading on Thursday,  putting it one step closer to becoming law by the end of next week.  It makes changes to the definitions in the Energy Corporation Act that would,  if you listen to the official explanation, prevent Nalcor from holding back the information on embedded contractors that caused such a fuss last year.  That's the only legislation changed by Bill 19.

The problem is that the Energy Corporation Act was only part of the legal argument Nalcor made in its decision to withhold financial details. Nalcor withheld the financial information for individual contractors on the basis it was "commercially sensitive information" under the ECA. You can see the whole thing neatly summarised in access and privacy commissioner Donovan Molloy's decision last year on an appeal about the Nalcor decision to withhold chunks of information.

Bill 19 deals with the ECA changes.

But Nalcor withheld other information - related to folks who were working through an intermediary company  -  using section 40 of the Access to Information and Protection of Personal Privacy Act.  Bill 19 doesn't do anything with that so the odds are good Nalcor could still hold back information people wanted.

But it gets worse.

Whoever drafted this bill might think the changes to the EPA were enough to cover the individual contractors.

Guess again.

The words in the ATIPPA might look like they say it is okay to release names, remuneration and other information for public employees but Justice Gillian Butler had other ideas.  In her outstandingly twisted and entirely ludicrous judgement in the Sunshine List case,  Butler turned out the lights on disclosure of precisely the sort of information contained in the original embedded contractor information requests.

If the law was never an ass before,  Gillian Butler gave it two sculpted cheeks and a well defined crack. Even though the words of the law say it is *not* an unreasonable invasion of privacy to disclose names and salaries,  Butler concluded that the legislature actually said that information should be be kept secret.  The sunshine list law that some people might think nullified Butler's decision only covered disclosure by the provincial government of some information for employees making more than a specific amount.  All the requests for information under ATIPPA are still covered by the Butler decision, no matter how much money the employee makes.

And Butler's judicial brain fart remains the law until a higher court overturns it or the legislature passes a law that says "Gillian Butler's nuttiness notwithstanding" this information will be made public.

All the information that folks wanted from Nalcor can stay secret.  Nalcor can justify it based on Butler's decision and the ATIPPA, 2015.

The funny thing about this sad tale is that the Premier and any minister of the Crown could have released all the information folks wanted back when the fuss was raging either at Nalcor or over the Sunshine List.  They could release the information based not on a request through ATIPPA but based on their own exercise of the Crown Prerogative. That's the basis on which Danny Williams gave the Auditor General access to documents in the fibre optic cable scandal, for example, even though Williams originally claimed he couldn't do it. 

Fuss as some of them might have,  there's nothing any of the contractors could have done about it since the Prerogative is not subject to judicial review.


22 May 2018

A cabinet, a caucus, and a legislature walk into a bar... #nlpoli

Don't feel bad.

Most people in Newfoundland and Labrador have no idea how our political system works.

Self-described experts.



Very often hopelessly lost when discussing even the most basic points about our political system.
The real problems start when the politicians and, as it turns out,  the public servants supporting the House, have no idea what they are talking about.

Like, say, the briefing note handed to the House of Assembly management committee last week that included these statements:

08 May 2018

First Wells ministry, 05 May 1989 #nlpoli

May 5, 1989 was a Friday. 

It only took the couple of weeks between the election on April 20 that year and May 5 for the government to change hands between political parties for only the second time since Confederation.  The House met before the end of the month was out and before that first session ended,  the province had a new budget.

Clyde Wells was the fifth Premier after Confederation.  He was preceded by Joe Smallwood,  Frank Moores, Brian Peckford, and Tom Rideout.  

In the first 40 years after confederation,  we had five Premiers.  Since 1999 - that is, in less than 20 years - we have had eight Premiers.  Dwight Ball is number 13 in the line, the majority of whom since 1999 have served for four years or less.  We might have a fourteenth, depending on how events turn out.

The habit after 2003 has been for a majority party elected in the fall to wait upwards of six months before opening the legislature.  The initial excuse was that there was a work to do in getting ready for the House.  In 2007 and 2011,  the government was re-elected and did the same thing.  

This is the official portrait of the cabinet sworn in May 1989 by Lieutenant Governor Jim McGrath.  The photo is courtesy of Rex Gibbons, who you can see standing on the extreme left. The photographer was Don Lane.

It was a relatively small cabinet at 15. The cabinets immediately before it had had upwards of 23 members. It was also a fairly well-educated cabinet: three of the people around the table had doctoral degrees (two in education and one in geology). There were a couple of lawyers, some teachers, business owners, and folks like Walter Carter who had spent all of his working life in elected public service.

Most of them carried on in cabinet for a while after or in the House and later still went back to their old careers or took on new adventures. Five of the members of that cabinet have passed away since.

The ministry consisted of:

Standing (left to right)
  • Rex Gibbons, Mines and Energy
  • Eric Gullage,  Municipal and Provincial Affairs
  • Walter Carter, Fisheries 
  • Chuck Furey, Development  (after 1992 - Industry, Trade, and Technology)
  • Dave Gilbert,  Works, Services, and Transportation
  • Jim Kelland,  Environment 
  • Paul Dicks,  Justice,  Attorney General
  • Chris Decker,  Health
  • Herb Kitchen,  Finance

Seated (left to right)
  • Graham Flight,  Forestry and Agriculture
  • Patt Cowan,  Employment and Labour Relations
  • Clyde Wells,  Premier,  Intergovernmental Affairs
  • His Honour, James McGrath,  Lieutenant Governor
  • Winston Baker,  President of the Executive Council,  President of Treasury Board
  • John Efford,  Social Services
  • Phil Warren,  Education

Corrected name of Furey's portfolio, 09 May 2018)